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REGISTRAR LICENSE AND AGREEMENT
This Registrar License and Agreement (the "Agreement") is dated as of
__________, 1999 ("Effective Date") by and between Network Solutions, Inc., a
Delaware corporation, with its principal place of business located at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("NSI"or the "Registry"), and
_________________, a _____________________ corporation, with its principal
place of business located at _____________________________________
("Registrar"). NSI and Registrar may be referred to individually as a "Party"
and collectively as the "Parties."
WHEREAS, multiple registrars will provide Internet domain name registration
services within the .com, .org and .net top-level domains wherein NSI operates
and maintains certain TLD servers and zone files ("Registry");
WHEREAS, Registrar wishes to register second-level domain names in the multiple
registrar system for the .com, .org and .net TLDs.
NOW, THEREFORE, for and in consideration of the mutual promises, benefits and
covenants contained herein and for other good and valuable consideration, the
receipt, adequacy and sufficiency of which are hereby acknowledged, NSI and
Registrar, intending to be legally bound, hereby agree as follows:
1. DEFINITIONS
1.1. "DNS" refers to the Internet domain name system.
1.2. "IP" means Internet Protocol.
1.3. An "SLD" is a second-level domain of the DNS.
1.4. The "System" refers to the multiple registrar system developed by
NSI for registration of second-leveldomain names in the .com, .org and .net
TLDs.
1.5. A "TLD" is a top-level domain of the DNS.
1.6. The "Licensed Product" refers to the RRP, APIs, and software,
collectively.
2. OBLIGATIONS OF THE PARTIES
2.1. SYSTEM OPERATION AND ACCESS. Throughout the Term of this
Agreement, NSI shall operate the System and provide Registrar with access to the
System enabling Registrar to transmit domain name registration information for
the .com, .org and .net
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TLDs to the System according to a protocol developed by NSI and known as the
Registry Registrar Protocol ("RRP").
2.2. DISTRIBUTION OF RRP, APIs AND SOFTWARE. No later than
three business days after the Effective Date of this Agreement, NSI shall
provide to Registrar (i) full documentation of the RRP, (ii) "C" and "Java"
application program interfaces ("APIs") to the RRP with documentation, and (iii)
reference client software ("Software") that will enable Registrar to develop its
system to register second-level domain names through the System for the .com,
.org and .net TLDs. If NSI elects to modify or upgrade the APIs and/or RRP, NSI
shall provide updated APIs to the RRP with documentation and updated Software to
Registrar promptly as such updates become available.
2.3. NEW ARCHITECTURAL FEATURES. NSI will use its best
commercial efforts to develop and implement two additional modifications to the
Licensed Product by January 15, 2000 as follows:
2.3.1. NSI will issue an upgrade to the Licensed Product that
will enable a Registrar to accept initial domain name registrations or renewals
of a minimum of one year in length, or in multiples of one year increments.
2.3.2. NSI will issue an upgrade to the Licensed Product that
will enable registrars to accept the addition of one additional year to a
registrant's "current" registration period when a registrant changes from one
registrar to another.
In no event shall the total unexpired term of a registration exceed ten (10)
years.
Registrars will be able to offer these new features only for new registrations
or renewals occurring after the Upgrade is deployed. Both Upgrades will be
introduced into the Operational Test and Evaluation environment for testing
prior to deployment.
2.4. REGISTRAR RESPONSIBILITY FOR CUSTOMER SUPPORT. Registrar
shall be responsible for providing customer service (including domain name
record support), billing and technical support, and customer interface to accept
customer (the "SLD holder") orders.
2.5. DATA SUBMISSION REQUIREMENTS. As part of its
registration of all SLD registrations in the .com, .net, and .org TLDs during
the Term of this Agreement, Registrar shall submit the following data elements
using the RRP concerning SLD registrations it processes:
2.5.1. The name of the SLD being registered;
2.5.2. The IP addresses of the primary nameserver and
secondary nameserver(s) for the SLD;
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2.5.3. The corresponding host names of those
nameservers;
2.5.4. Unless automatically generated by the
registry system, the identity of the registrar;
2.5.5. Unless automatically generated by the
registry system, the expiration date of the registration; and
2.5.6. Other data required as a result of further
development of the registry system by the Registry.
2.6. LICENSE. Registrar grants NSI as Registry a
non-exclusive non-transferable limited license to the data elements consisting
of the SLD name registered, the IP addresses of nameservers, and the identity of
the registering registrar for propagation of and the provision of authorized
access to the TLD zone files.
2.7. REGISTRAR'S REGISTRATION AGREEMENT AND DOMAIN NAME
DISPUTE POLICY. Registrar shall have developed and employ in its domain name
registration business an electronic or paper registration agreement, including a
domain name dispute policy, a copy of which is attached to this Agreement as
Exhibit A (which may be amended from time to time by Registrar, provided a copy
is furnished to the Registry three (3) business days in advance of any such
amendment), to be entered into by Registrar with each SLD holder as a condition
of registration. Registrar shall include terms in its agreement with each SLD
holder that are consistent with Registrar's duties to NSI hereunder.
2.8. SECURE CONNECTION. Registrar agrees to develop and
employ in its domain name registration business all necessary technology and
restrictions to ensure that its connection to the System is secure. All data
exchanged between Registrar's system and the System shall be protected to avoid
unintended disclosure of information. Each RRP session shall be authenticated
and encrypted using two-way secure socket layer ("SSL") protocol. Registrar
agrees to authenticate every RRP client connection with the System using both an
X.509 server certificate issued by a commercial Certification Authority
identified by the Registry and its Registrar password, which it shall disclose
only to its employees with a need to know. Registrar agrees to notify Registry
within four hours of learning that its Registrar password has been compromised
in any way or if its server certificate has been revoked by the issuing
Certification Authority or compromised in any way.
2.9. DOMAIN NAME LOOKUP CAPABILITY. Registrar agrees to
employ in its domain name registration business NSI's Registry domain name
lookup capability to determine if a requested domain name is available or
currently unavailable for registration.
2.10. TRANSFER OF SPONSORSHIP OF REGISTRATIONS. Registrar
agrees to implement transfers of SLD registrations from another registrar to
Registrar and vice
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versa pursuant to the Policy on Transfer of Sponsorship of Registrations Between
Registrars appended hereto as Exhibit B.
2.11. TIME. Registrar agrees that in the event of any
dispute concerning the time of the entry of a domain name registration into the
Registry database, the time shown in the NSI Registry records shall control.
2.12. COMPLIANCE WITH TERMS AND CONDITIONS. Registrar agrees
to comply with all other reasonable terms or conditions established from time to
time, to assure sound operation of the System, by NSI as Registry in a
non-arbitrary manner and applicable to all registrars, including NSI, and
consistent with NSI's Cooperative Agreement with the United States Government or
NSI's Registry Agreement with the Internet Corporation for Assigned Names and
Numbers ("ICANN"), as applicable, upon NSI's notification to Registrar of the
establishment of those terms and conditions.
2.13. RESOLUTION OF TECHNICAL PROBLEMS. Registrar agrees to
employ necessary employees, contractors, or agents with sufficient technical
training and experience to respond to and fix all technical problems concerning
the use of the RRP and the APIs in conjunction with Registrar's systems.
Registrar agrees that in the event of significant degradation of the System or
other emergency, Network Solutions, as Registry, may, in its sole discretion,
temporarily suspend access to the System. Such temporary suspensions shall be
applied in a nonarbitrary manner and shall apply fairly to any registrar
similarly situated, including NSI.
2.14. SURETY INSTRUMENT. During the Initial Term and any
Renewal Terms, Registrar shall have in place a performance bond, letter of
credit or equivalent instrument (the "Surety Instrument") from a surety
acceptable to NSI, in the amount of $100,000 U.S. dollars. The terms of the
Surety Instrument shall indemnify and hold harmless NSI and its employees,
directors, officers, representatives, agents and affiliates from all costs and
damages (including reasonable attorneys' fees) which it may suffer by reason of
Registrar's failure to indemnify NSI as provided in Section 6.16 by making
payment(s) up to the full amount of the bond within ten (10) days of NSI's
having notified the surety of its claim(s) of damages, having identified the
basis for any such claim. NSI shall not be entitled to payment under the Surety
Instrument until such time as it has certified that it has incurred expenses for
which it is entitled to reimbursement in accordance with the provisions of
Section 6.16 of this Agreement.
2.15. PROHIBITED DOMAIN NAME REGISTRATIONS. Registrar agrees
to comply with the policies of NSI as Registry that will be applicable to all
registrars and that will prohibit the registration of certain domain names in
the .com, .org and .net TLDs which are not allowed to be registered by statute
or regulation.
2.16. INDEMNIFICATION REQUIRED OF SLD HOLDERS. Registrar
shall require each SLD holder to indemnify, defend and hold harmless NSI, and
its directors, officers, employees and agents from and against any and all
claims, damages, liabilities, costs and
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expenses, including reasonable legal fees and expenses arising out of or
relating to the SLD holder's domain name registration.
3. LICENSE
3.1. LICENSE GRANT. Subject to the terms and conditions of this
Agreement, NSI hereby grants Registrar and Registrar accepts a non-exclusive,
non-transferable, worldwide limited license to use for the Term and purposes of
this Agreement the RRP, APIs and Software, as well as updates and redesigns
thereof, to provide domain name registration services in the .com, .org and
.net TLDs only and for no other purpose. The RRP, APIs and Software, as well
as updates and redesigns thereof, will enable Registrar to register domain
names with the Registry on behalf of its SLD holders. Registrar, using the
RRP, APIs and Software, as well as updates and redesigns thereof, will be able
to invoke the following operations on the System: (i) check the availability
of a domain name, (ii) register a domain name, (iii) re-register a domain name,
(iv) cancel the registration of a domain name it has registered, (v) update the
nameservers of a domain name, (vi) transfer a domain name from another
registrar to itself with proper authorization, (vii) query a domain name
registration record, (viii) register a nameserver, (ix) update the IP addresses
of a nameserver, (x) delete a nameserver, (xi) query a nameserver, and (xii)
establish and end an authenticated session.
3.2. LIMITATIONS ON USE. Notwithstanding any other provisions in
this Agreement, except with the written consent of NSI, Registrar shall not:
(i) sublicense the RRP, APIs or Software or otherwise permit any use of the
RRP, APIs or Software by or for the benefit of any party other than Registrar,
(ii) publish, distribute or permit disclosure of the RRP, APIs or Software
other than to employees, contractors, and agents of Registrar for use in
Registrar's domain name registration business, (iii) decompile, reverse
engineer, copy or re-engineer the RRP, APIs or Software for any unauthorized
purpose, or (iv) use or permit use of the RRP, APIs or Software in violation of
any federal, state or local rule, regulation or law, or for any unlawful
purpose.
Registrar agrees to employ the necessary measures to prevent its access to the
System granted hereunder from being used for (i) the transmission of
unsolicited, commercial e-mail (spam) to entities other than Registrar's
customers; (ii) high volume, automated, electronic processes that apply to NSI
for large numbers of domain names, except as reasonably necessary to register
domain names or modify existing registrations; or (iii) high volume, automated,
electronic, repetitive queries for the purpose of extracting data to be used
for Registrar's purposes, except as reasonably necessary to register domain
names or modify existing registrations.
3.3. CHANGES TO LICENSED MATERIALS. NSI may from time to time
make modifications to the RRP, APIs or Software licensed hereunder that will
enhance functionality or otherwise improve the System. NSI will provide
Registrar with at least sixty (60) days notice prior to the implementation of
any material changes to the RRP, APIs or software licensed hereunder.
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4. SUPPORT SERVICES
4.1. ENGINEERING SUPPORT. NSI agrees to provide Registrar with
reasonable engineering telephone support (between the hours of 9 a.m. to 5 p.m.
local Herndon, Virginia time or at such other times as may be mutually agreed
upon) to address engineering issues arising in connection with Registrar's use
of the System.
4.2. CUSTOMER SERVICE SUPPORT. During the Term of this Agreement,
NSI will provide reasonable telephone and e-mail customer service support to
Registrar, not SLD holders or prospective customers of Registrar, for
non-technical issues solely relating to the System and its operation. NSI will
provide Registrar with a telephone number and e-mail address for such support
during implementation of the RRP, APIs and Software. First-level telephone
support will be available on a 7-day/24-hour basis. NSI will provide a
web-based customer service capability in the future and such web-based support
will become the primary method of customer service support to Registrar at such
time.
5. FEES
5.1. LICENSE FEE. As consideration for the license of the RRP,
APIs and Software, Registrar agrees to pay NSI on the Effective Date a
non-refundable one-time fee in the amount of $ 10,000 payable in United States
dollars (the "License Fee") and payable by check to Network Solutions, Inc.,
Attention: Registry Accounts Receivable, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or by wire transfer to Bank of America, for the credit of
Network Solutions, Inc., Account #004112889843, ABA # ▇▇▇▇▇▇▇▇▇, Swift,
NABKUS3ARIC. No later than three (3) business days after either the receipt
(and final settlement if payment by check) of such License Fee, or the
Effective Date of this Agreement, whichever is later, NSI will provide the RRP,
APIs and Software to Registrar.
5.2. REGISTRATION FEES.
(a) From the Effective Date of this Agreement through
January 15, 2000, Registrar agrees to pay NSI the non-refundable amounts of $18
United States dollars for each initial two-year domain name registration and $9
United States dollars for each one-year domain name re-registration
(collectively, the "Registration Fees") registered by Registrar through the
System.
(b) Thereafter, and for the balance of the term of this
Agreement, Registrar agrees to pay NSI the non-refundable amounts of $6 United
States dollars for each annual increment of an initial domain name registration
and $6 United States dollars for each annual increment of a domain name
re-registration (collectively, the "Registration Fees") registered by Registrar
through the System.
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(c) NSI reserves the right to adjust the Registration Fees
prospectively upon thirty (30) days prior notice to Registrar, provided that
such adjustments are consistent with NSI's Cooperative Agreement with the
United States Government or its Registry Agreement with ICANN, as applicable,
and are applicable to all registrars in the .com, .org and .net TLDs. NSI will
invoice Registrar monthly in arrears for each month's Registration Fees. All
Registration Fees are due immediately upon receipt of NSI's invoice pursuant to
a letter of credit, deposit account, or other acceptable credit terms agreed by
the Parties.
5.3. CHANGE IN REGISTRAR SPONSORING DOMAIN NAME. Registrar may
assume sponsorship of an SLD holder's existing domain name registration from
another registrar by following the policy set forth in Exhibit B to this
Agreement. Registrar agrees to pay NSI the applicable Registration Fee as set
forth above. For transfers taking place after January 15, 2000, this shall
result in a corresponding extension of the existing registration, provided that
in no event shall the total unexpired term of a registration exceed ten (10)
years. The losing registrar's Registration Fees will not be refunded as a
result of any such transfer.
5.4. NON-PAYMENT OF REGISTRATION FEES. Timely payment of
Registration Fees is a material condition of performance under this Agreement.
In the event that Registrar fails to pay its Registration Fees, either initial
or re-registration fees, within five (5) days of the date when due, NSI may
stop accepting new registrations and/or delete the domain names associated with
invoices not paid in full from the Registry database and give written notice of
termination of this Agreement pursuant to Section 6.1(b) below.
6. MISCELLANEOUS
6.1. TERM OF AGREEMENT AND TERMINATION.
(a) TERM OF THE AGREEMENT. The duties and obligations of
the Parties under this Agreement shall apply from the Effective Date through
and including the last day of the calendar month sixty (60) months from the
Effective Date (the "Initial Term"). Upon conclusion of the Initial Term, all
provisions of this Agreement will automatically renew for successive five (5)
year renewal periods until the Agreement has been terminated as provided
herein, Registrar elects not to renew, or NSI ceases to operate as the registry
for the .com, .org and .net TLDs. In the event that revisions to NSI's
Registrar License and Agreement are approved or adopted by the U.S. Department
of Commerce, or ICANN, as appropriate, Registrar will execute an amendment
substituting the revised agreement in place of this Agreement, or Registrar
may, at its option exercised within fifteen (15) days, terminate this Agreement
immediately by giving written notice to NSI.
(b) TERMINATION FOR CAUSE. In the event that either Party
materially breaches any term of this Agreement including any of its
representations and warranties hereunder and such breach is not substantially
cured within thirty (30) calendar days after
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written notice thereof is given by the other Party, then the non-breaching Party
may, by giving written notice thereof to the other Party, terminate this
Agreement as of the date specified in such notice of termination.
(c) TERMINATION AT OPTION OF REGISTRAR. Registrar may
terminate this Agreement at any time by giving NSI thirty (30) days notice of
termination.
(d) TERMINATION UPON LOSS OF REGISTRAR'S ACCREDITATION.
This Agreement shall terminate in the event Registrar's accreditation by ICANN,
or its successor, is terminated or expires without renewal.
(e) TERMINATION IN THE EVENT THAT SUCCESSOR REGISTRY IS
NAMED. This Agreement shall terminate in the event that the U.S. Department of
Commerce or ICANN, as appropriate, designates another entity to serve as the
registry for the .com, .net. and .org TLDs (the "Successor Registry").
(f) TERMINATION IN THE EVENT OF BANKRUPTCY. Either Party
may terminate this Agreement if the other Party is adjudged insolvent or
bankrupt, or if proceedings are instituted by or against a Party seeking
relief, reorganization or arrangement under any laws relating to insolvency, or
seeking any assignment for the benefit of creditors, or seeking the appointment
of a receiver, liquidator or trustee of a Party's property or assets or the
liquidation, dissolution or winding up of a Party's business.
(g) EFFECT OF TERMINATION. Upon expiration or termination
of this Agreement, NSI will complete the registration of all domain names
processed by Registrar prior to the date of such expiration or termination,
provided that Registrar's payments to NSI for Registration Fees are current and
timely. Immediately upon any expiration or termination of this Agreement,
Registrar shall (i) transfer its sponsorship of SLD name registrations to
another licensed registrar(s) of the Registry, in compliance with any
procedures established or approved by the U.S. Department of Commerce or ICANN,
as appropriate, and (ii) either return to NSI or certify to NSI the destruction
of all data, software and documentation it has received under this Agreement.
(h) SURVIVAL. In the event of termination of this
Agreement, the following shall survive: (i) Sections 2.6, 2.7, 6.1(g), 6.6,
6.7, 6.10, 6.12, 6.13, 6.14 and 6.16; (ii) the SLD holder's obligations to
indemnify, defend, and hold harmless NSI, as stated in Section 2.16; (iii) the
surety's obligations under the Surety Instrument described in Section 2.14 with
respect to matters arising during the term of this Agreement; and (iv)
Registrar's payment obligations as set forth in Section 5.2 with respect to
initial registrations or re-registrations during the term of this Agreement.
Neither Party shall be liable to the other for damages of any sort resulting
solely from terminating this Agreement in accordance with its terms but each
Party shall be liable for any damage arising from any breach by it of this
Agreement.
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6.2. NO THIRD PARTY BENEFICIARIES; RELATIONSHIP OF THE PARTIES.
This Agreement does not provide and shall not be construed to provide third
parties (i.e., non-parties to this Agreement), including any SLD holder, with
any remedy, claim, cause of action or privilege. Nothing in this Agreement
shall be construed as creating an employer-employee or agency relationship, a
partnership or a joint venture between the Parties.
6.3. FORCE MAJEURE. Neither Party shall be responsible for any
failure to perform any obligation or provide service hereunder because of any
Act of God, strike, work stoppage, governmental acts or directives, war, riot
or civil commotion, equipment or facilities shortages which are being
experienced by providers of telecommunications services generally, or other
similar force beyond such Party's reasonable control.
6.4. FURTHER ASSURANCES. Each Party hereto shall execute and/or
cause to be delivered to each other Party hereto such instruments and other
documents, and shall take such other actions, as such other Party may
reasonably request for the purpose of carrying out or evidencing any of the
transactions contemplated by this Agreement.
6.5. AMENDMENT IN WRITING. Any amendment or supplement to this
Agreement shall be in writing and duly executed by both Parties.
6.6. ATTORNEYS' FEES. If any legal action or other legal
proceeding (including arbitration) relating to the performance under this
Agreement or the enforcement of any provision of this Agreement is brought
against either Party hereto, the prevailing Party shall be entitled to recover
reasonable attorneys' fees, costs and disbursements (in addition to any other
relief to which the prevailing Party may be entitled).
6.7. DISPUTE RESOLUTION; CHOICE OF LAW; VENUE. The Parties shall
attempt to resolve any disputes between them prior to resorting to litigation.
This Agreement is to be construed in accordance with and governed by the
internal laws of the Commonwealth of Virginia, United States of America without
giving effect to any choice of law rule that would cause the application of the
laws of any jurisdiction other than the internal laws of the Commonwealth of
Virginia to the rights and duties of the Parties. Any legal action or other
legal proceeding relating to this Agreement or the enforcement of any provision
of this Agreement shall be brought or otherwise commenced in any state or
federal court located in the eastern district of the Commonwealth of Virginia.
Each Party to this Agreement expressly and irrevocably consents and submits to
the jurisdiction and venue of each state and federal court located in the
eastern district of the Commonwealth of Virginia (and each appellate court
located in the Commonwealth of Virginia) in connection with any such legal
proceeding.
6.8. NOTICES. Any notice or other communication required or
permitted to be delivered to any Party under this Agreement shall be in writing
and shall be deemed properly delivered, given and received when delivered (by
hand, by registered mail, by courier or express delivery service, by e-mail or
by telecopier during business hours) to
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the address or telecopier number set forth beneath the name of such Party
below, unless party has given a notice of a change of address in writing:
if to Registrar:
__________________________________________
__________________________________________
__________________________________________
__________________________________________
__________________________________________
__________________________________________
with a copy to:
__________________________________________
__________________________________________
__________________________________________
__________________________________________
__________________________________________
__________________________________________
if to NSI:
Network Solutions, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Director, Customer Affairs
Telecopier: + ▇ (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
with a copy to:
General Counsel
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: + ▇ (▇▇▇) ▇▇▇-▇▇▇▇
6.9. ASSIGNMENT/SUBLICENSE. Except as otherwise expressly
provided herein, the provisions of this Agreement shall inure to the benefit of
and be binding upon, the
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successors and permitted assigns of the Parties hereto. Registrar shall not
assign, sublicense or transfer its rights or obligations under this Agreement
to any third person without the prior written consent of NSI.
6.10. USE OF CONFIDENTIAL INFORMATION. The Parties' use and
disclosure of Confidential Information disclosed hereunder are subject to the
terms and conditions of the Parties' Confidentiality Agreement (Exhibit C) that
will be executed contemporaneously with this Agreement. Registrar agrees that
the RRP, APIs and Software are the Confidential Information of NSI.
6.11. DELAYS OR OMISSIONS; WAIVERS. No failure on the part of
either Party to exercise any power, right, privilege or remedy under this
Agreement, and no delay on the part of either Party in exercising any power,
right, privilege or remedy under this Agreement, shall operate as a waiver of
such power, right, privilege or remedy; and no single or partial exercise or
waiver of any such power, right, privilege or remedy shall preclude any other
or further exercise thereof or of any other power, right, privilege or remedy.
No Party shall be deemed to have waived any claim arising out of this
Agreement, or any power, right, privilege or remedy under this Agreement,
unless the waiver of such claim, power, right, privilege or remedy is expressly
set forth in a written instrument duly executed and delivered on behalf of such
Party; and any such waiver shall not be applicable or have any effect except in
the specific instance in which it is given.
6.12. LIMITATION OF LIABILITY. IN NO EVENT WILL NSI BE LIABLE TO
REGISTRAR FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR
CONSEQUENTIAL DAMAGES, OR ANY DAMAGES RESULTING FROM LOSS OF PROFITS, ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF NSI HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
6.13. CONSTRUCTION. The Parties agree that any rule of
construction to the effect that ambiguities are to be resolved against the
drafting Party shall not be applied in the construction or interpretation of
this Agreement.
6.14. INTELLECTUAL PROPERTY. Subject to Section 2.6 above, each
Party will continue to independently own its intellectual property, including
all patents, trademarks, trade names, service marks, copyrights, trade secrets,
proprietary processes and all other forms of intellectual property.
6.15. REPRESENTATIONS AND WARRANTIES
(a) REGISTRAR. Registrar represents and warrants that:
(1) it is a corporation duly incorporated, validly existing and in good
standing under the law of the ______________, (2) it has all requisite
corporate power and authority to execute, deliver and perform its obligations
under this Agreement, (3) it is, and during the Term of this
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Agreement will continue to be, accredited by ICANN or its successor, pursuant
to an accreditation agreement dated after November 4, 1999, (4) the execution,
performance and delivery of this Agreement has been duly authorized by
Registrar, (5) no further approval, authorization or consent of any
governmental or regulatory authority is required to be obtained or made by
Registrar in order for it to enter into and perform its obligations under this
Agreement, and (6) Registrar's Surety Instrument provided hereunder is a valid
and enforceable obligation of the surety named on such Surety Instrument.
(b) NSI. NSI represents and warrants that: (1) it is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Delaware, (2) it has all requisite corporate power and
authority to execute, deliver and perform its obligations under this Agreement,
(3) the execution, performance and delivery of this Agreement has been duly
authorized by NSI, and (4) no further approval, authorization or consent of any
governmental or regulatory authority is required to be obtained or made by NSI
in order for it to enter into and perform its obligations under this Agreement.
(c) DISCLAIMER OF WARRANTIES. The RRP, APIs and Software
are provided "as-is" and without any warranty of any kind. NSI EXPRESSLY
DISCLAIMS ALL WARRANTIES AND/OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT
NOT LIMITED TO, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY OR
SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT
OF THIRD PARTY RIGHTS. NSI DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN
THE RRP, APIs OR SOFTWARE WILL MEET REGISTRAR'S REQUIREMENTS, OR THAT THE
OPERATION OF THE RRP, APIs OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR
THAT DEFECTS IN THE RRP, APIs OR SOFTWARE WILL BE CORRECTED. FURTHERMORE, NSI
DOES NOT WARRANT NOR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS
OF THE RRP, APIs, SOFTWARE OR RELATED DOCUMENTATION IN TERMS OF THEIR
CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. SHOULD THE RRP, APIs OR
SOFTWARE PROVE DEFECTIVE, REGISTRAR ASSUMES THE ENTIRE COST OF ALL NECESSARY
SERVICING, REPAIR OR CORRECTION OF REGISTRAR'S OWN SYSTEMS AND SOFTWARE.
6.16. INDEMNIFICATION. Registrar, at its own expense and within
thirty (30) days of presentation of a demand by NSI under this paragraph, will
indemnify, defend and hold harmless NSI and its employees, directors, officers,
representatives, agents and affiliates, against any claim, suit, action, or
other proceeding brought against NSI or any affiliate of NSI based on or
arising from any claim or alleged claim (i) relating to any product or service
of Registrar; (ii) relating to any agreement, including Registrar's dispute
policy, with any SLD holder of Registrar; or (iii) relating to Registrar's
domain name registration business, including, but not limited to, Registrar's
advertising, domain
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name application process, systems and other processes, fees charged, billing
practices and customer service; provided, however, that in any such case: (a)
NSI provides Registrar with prompt notice of any such claim, and (b) upon
Registrar's written request, NSI will provide to Registrar all available
information and assistance reasonably necessary for Registrar to defend such
claim, provided that Registrar reimburses NSI for its actual and reasonable
costs. Registrar will not enter into any settlement or compromise of any such
indemnifiable claim without NSI's prior written consent, which consent shall
not be unreasonably withheld. Registrar will pay any and all costs, damages,
and expenses, including, but not limited to, reasonable attorneys' fees and
costs awarded against or otherwise incurred by NSI in connection with or
arising from any such indemnifiable claim, suit, action or proceeding.
6.17. ENTIRE AGREEMENT; SEVERABILITY. This Agreement, which
includes Exhibits A, B and C, constitutes the entire agreement between the
Parties concerning the subject matter hereof and supersedes any prior
agreements, representations, statements, negotiations, understandings,
proposals or undertakings, oral or written, with respect to the subject matter
expressly set forth herein. If any provision of this Agreement shall be held
to be illegal, invalid or unenforceable, each Party agrees that such provision
shall be enforced to the maximum extent permissible so as to effect the intent
of the Parties, and the validity, legality and enforceability of the remaining
provisions of this Agreement shall not in any way be affected or impaired
thereby. If necessary to effect the intent of the Parties, the Parties shall
negotiate in good faith to amend this Agreement to replace the unenforceable
language with enforceable language that reflects such intent as closely as
possible.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date set forth in the first paragraph hereof.
Network Solutions, Inc. [Registrar]
By:________________________________ By:________________________________
Name:______________________________ Name:______________________________
Title:_____________________________ Title:_____________________________
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EXHIBIT A
REGISTRAR'S DISPUTE POLICY
[TO BE SUPPLIED FROM TIME TO TIME BY REGISTRAR]
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EXHIBIT B
POLICY ON TRANSFER OF SPONSORSHIP OF REGISTRATIONS BETWEEN REGISTRARS
REGISTRAR REQUIREMENTS
The registration agreement between each Registrar and its SLD holder
shall include a provision explaining that an SLD holder will be
prohibited from changing its Registrar during the first 60 days after
initial registration of the domain name with the Registrar. Beginning
on the 61st day after the initial registration with the Registrar, the
procedures for change in sponsoring registrar set forth in this policy
shall apply. Enforcement shall be the responsibility of the Registrar
sponsoring the domain name registration.
For each instance where an SLD holder wants to change its Registrar
for an existing domain name (i.e., a domain name that appears in a
particular top-level domain zone file), the gaining Registrar shall:
1) Obtain express authorization from an individual who has the
apparent authority to legally bind the SLD holder (as
reflected in the database of the losing Registrar).
a) The form of the authorization is at the discretion of
each gaining Registrar.
b) The gaining Registrar shall retain a record of
reliable evidence of the authorization.
2) In those instances when the Registrar of record is being
changed simultaneously with a transfer of a domain name from
one party to another, the gaining Registrar shall also obtain
appropriate authorization for the transfer. Such
authorization shall include, but not be limited to, one of
the following:
a) A bilateral agreement between the parties.
b) The final determination of a binding dispute
resolution body.
c) A court order.
3) Request, by the transmission of a "transfer" command as
specified in the Registry Registrar Protocol, that the
Registry database be changed to reflect the new Registrar.
a) Transmission of a "transfer" command constitutes a
representation on the part of the gaining Registrar
that:
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(1) has been obtained from the SLD holder listed in
the database of the losing the requisite
authorization Registrar, and
(2) the losing Registrar will be provided with a
copy of the authorization if and when requested.
In those instances when the Registrar of record denies the requested
change of Registrar, the Registrar of record shall notify the
prospective gaining Registrar that the request was denied and the
reason for the denial.
Instances when the requested change of sponsoring Registrar may be
denied include, but are not limited to:
1) Situations described in the Domain Name Dispute Resolution
Policy
2) A pending bankruptcy of the SLD Holder
3) Dispute over the identity of the SLD Holder
4) Request to transfer sponsorship occurs within the first 60
days after the initial registration with the Registrar
In all cases, the losing Registrar shall respond to the e-mail notice
regarding the "transfer" request within five (5) days. Failure to
respond will result in a default "approval" of the "transfer."
REGISTRY REQUIREMENTS.
Upon receipt of the "transfer" command from the gaining Registrar, the
Registry will transmit an e-mail notification to both Registrars.
The Registry shall complete the "transfer" if either:
1) the losing Registrar expressly "approves" the request, or
2) the Registry does not receive a response from the losing Registrar
within five (5) days.
When the Registry's database has been updated to reflect the change to
the gaining Registrar, the Registry will transmit an email
notification to both Registrars.
RECORDS OF REGISTRATION.
Each SLD holder shall maintain its own records appropriate to document
and prove the initial domain name registration date, regardless of the
number of Registrars with which the SLD holder enters into a contract
for registration services.
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EXHIBIT C
CONFIDENTIALITY AGREEMENT
THIS CONFIDENTIALITY AGREEMENT is entered into by and between Network
Solutions, Inc. ("NSI"), a Delaware corporation having its principal place of
business in Herndon, VA, and ___________________ , a _________ corporation
having its principal place of business in ___________________ ("Registrar"),
through their authorized representatives, and takes effect on the date executed
by the final party (the "Effective Date").
Under this Confidentiality Agreement ("Confidentiality Agreement"),
the Parties intend to disclose to one another information which they consider
to be valuable, proprietary, and confidential.
NOW, THEREFORE, the parties agree as follows:
1. CONFIDENTIAL INFORMATION
1.1. "Confidential Information", as used in this Confidentiality Agreement,
shall mean all information and materials including, without limitation,
computer software, data, information, databases, protocols, reference
implementation and documentation, and functional and interface specifications,
provided by the disclosing party to the receiving party under this
Confidentiality Agreement and marked or otherwise identified as Confidential,
provided that if a communication is oral, the disclosing party will notify the
receiving party in writing within 15 days of the disclosure.
2. CONFIDENTIALITY OBLIGATIONS
2.1. In consideration of the disclosure of Confidential Information, the
Parties agree that:
(a) The receiving party shall treat as strictly confidential, and
use all reasonable efforts to preserve the secrecy and confidentiality
of, all Confidential Information received from the disclosing party,
including implementing reasonable physical security measures and
operating procedures.
(b) The receiving party shall make no disclosures whatsoever of
any Confidential Information to others, provided however, that if the
receiving party is a corporation, partnership, or similar entity,
disclosure is permitted to the receiving party's officers, employees,
contractors and agents who have a demonstrable need to know such
Confidential Information, provided the receiving party shall advise
such personnel of the confidential nature of the Confidential
Information and of the procedures required to maintain the
confidentiality thereof,
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and shall require them to acknowledge in writing that they have read,
understand, and agree to be individually bound by the terms of this
Confidentiality Agreement.
(c) The receiving party shall not modify or remove any
Confidential legends and/or copyright notices appearing on any
Confidential Information.
2.2. The receiving party's duties under this section (2) shall expire five
(5) years after the information is received or earlier, upon written
agreement of the Parties.
3. RESTRICTIONS ON USE
3.1. The receiving party agrees that it will use any Confidential
Information received under this Confidentiality Agreement solely for the
purpose of providing domain name registration services as a registrar and for
no other purposes whatsoever.
3.2. No commercial use rights or any licenses under any patent, patent
application, copyright, trademark, know-how, trade secret, or any other NSI
proprietary rights are granted by the disclosing party to the receiving party
by this Confidentiality Agreement, or by any disclosure of any Confidential
Information to the receiving party under this Confidentiality Agreement.
3.3. The receiving party agrees not to prepare any derivative works based
on the Confidential Information.
3.4. The receiving party agrees that any Confidential Information which is
in the form of computer software, data and/or databases shall be used on a
computer system(s) that is owned or controlled by the receiving party.
4. MISCELLANEOUS
4.1. This Confidentiality Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Virginia and all applicable
federal laws. The Parties agree that, if a suit to enforce this
Confidentiality Agreement is brought in the U.S. Federal District Court for the
Eastern District of Virginia, they will be bound by any decision of the Court.
4.2. The obligations set forth in this Confidentiality Agreement shall be
continuing, provided, however, that this Confidentiality Agreement imposes no
obligation upon the Parties with respect to information that (a) is disclosed
with the disclosing party's prior written approval; or (b) is or has entered
the public domain through no fault of the receiving party; or (c) is known by
the receiving party prior to the time of disclosure; or (d) is independently
developed by the receiving party without use of the Confidential Information;
or (e) is made generally available by the disclosing party without restriction
on disclosure.
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4.3. This Confidentiality Agreement may be terminated by either party upon
breach by the other party of any its obligations hereunder and such breach is
not cured within three (3) calendar days after the allegedly breaching party is
notified by the disclosing party of the breach. In the event of any such
termination for breach, all Confidential Information in the possession of the
Parties shall be immediately returned to the disclosing party; the receiving
party shall provide full voluntary disclosure to the disclosing party of any
and all unauthorized disclosures and/or unauthorized uses of any Confidential
Information; and the obligations of Sections 2 and 3 hereof shall survive such
termination and remain in full force and effect. In the event that the
Registrar License and Agreement between the Parties is terminated, the Parties
shall immediately return all Confidential Information to the disclosing party
and the receiving party shall remain subject to the obligations of Sections 2
and 3.
4.4. The terms and conditions of this Confidentiality Agreement shall inure
to the benefit of the Parties and their successors and assigns. The Parties'
obligations under this Confidentiality Agreement may not be assigned or
delegated.
4.5. The Parties agree that they shall be entitled to seek all available
legal and equitable remedies for the breach of this Confidentiality Agreement.
4.6. The terms and conditions of this Confidentiality Agreement may be
modified only in a writing signed by NSI and Registrar.
4.7. EXCEPT AS MAY OTHERWISE BE SET FORTH IN A SIGNED, WRITTEN AGREEMENT
BETWEEN THE PARTIES, THE PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES,
EXPRESSED OR IMPLIED, AS TO THE ACCURACY, COMPLETENESS, CONDITION, SUITABILITY,
PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY OF ANY
CONFIDENTIAL INFORMATION, AND THE PARTIES SHALL HAVE NO LIABILITY WHATSOEVER TO
ONE ANOTHER RESULTING FROM RECEIPT OR USE OF THE CONFIDENTIAL INFORMATION.
4.8. If any part of this Confidentiality Agreement is found invalid or
unenforceable, such part shall be deemed stricken herefrom and the Parties
agree: (a) to negotiate in good faith to amend this Confidentiality Agreement
to achieve as nearly as legally possible the purpose or effect as the stricken
part, and (b) that the remainder of this Confidentiality Agreement shall at all
times remain in full force and effect.
4.9. This Confidentiality Agreement contains the entire understanding and
agreement of the Parties relating to the subject matter hereof.
4.10. Any obligation imposed by this Confidentiality Agreement may be waived
in writing by the disclosing party. Any such waiver shall have a one-time
effect and shall not apply to any subsequent situation regardless of its
similarity.
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4.11. Neither Party has an obligation under this Confidentiality Agreement
to purchase, sell, or license any service or item from the other Party.
4.12. The Parties do not intend that any agency or partnership relationship
be created between them by this Confidentiality Agreement.
IN WITNESS WHEREOF, and intending to be legally bound, duly authorized
representatives of NSI and Registrar have executed this Confidentiality
Agreement in Virginia on the dates indicated below.
____________________ ("Registrar") Network Solutions, Inc. ("NSI")
By: ____________________________ By: __________________________
Title:__________________________ Title:________________________
Date:___________________________ Date:_________________________
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